Tusla must adopt ‘elaborate measures’ in assessing child abuse complaints due to lack of statutory framework

The Child and Family Agency (CFA) must adopt “elaborate measures’ to ensure fair procedures in investigating allegations of child abuse due to an absence of a detailed statutory framework, a High Court judge has said.

The CFA, also referred to as Tusla, has an obligation under section 3 of the Child Care Act of 1991 to promote the welfare of children and to investigate and assess allegations of abuse to determine whether there is a risk to children that require the implementation of protective measures, said Ms Justice Siobhan Phelan.

The “weighty and serious” duty of determining if an allegation is founded or unfounded is difficult, as failure to properly investigate may have devastating consequences for children or, on the other hand, cause serious repercussions for an alleged abuser, she said.

With a lack of detailed statutory procedures to govern the conduct of these investigations, the CFA has sought to ensure they are conducted fairly by publishing its own detailed policy documents.

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Ms Justice Phelan made the remarks in ruling on judicial review proceedings brought by a nine-year-old child, suing through her mother, over the agency’s decision to close its file on her disclosure at the age of three that she was sexually assaulted by the husband of her minder.

Setting out the backgrounds, the judge said the 2016 disclosure included that she had been touched in the genital area and digitally penetrated.

Her complaint was assessed at St Clare’s unit at Children’s Health Ireland on behalf of the agency and she was interviewed by specialist gardaí.

A social work assessment team concluded that, on the balance of probabilities, the child had been subjected to the sexual abuse and her allegation was “founded”.

The man was tried and acquitted in 2019 in relation to the alleged abuse. He appealed against the agency’s finding, and an independent appeal panel identified a failing in the earlier decision, which could not be upheld.

The panel highlighted the suggestibility of a child so young and said the leading questions used in a Garda interview “may have contaminated the evidence”. It agreed with a psychologist’s assertion that this likely compromised the St Clare’s assessment process and validation.

The decision to treat the section 3 assessment as at end and to close the file was made notwithstanding the girl’s concerns about the appeal process and the soundness of its conclusions, said the judge.

The girl claimed the appeal panel based its decision wholly on the conclusions contained in a psychologist’s report submitted on the man’s behalf.

The man contended it was not the CFA’s duty to make findings of guilt or innocence, but to investigate child protection concerns to protect children from risk. The girl is not at risk, so she has no justiciable interest in the investigation, he submitted.

The court was asked to decide whether the obligations on the CFA imposed by section 3 prevents delegation to a non-statutory appeal panel.

Ms Justice Phelan found the agency is entitled to provide an independent appeal mechanism within procedures it was obliged to adopt due to the lack of a statutory framework. The appeal panel, she said, is an “important procedural safeguard” deployed as part of the CFA’s efforts to ensure fairness in the assessment process.

The appeal panel was allowed to consider evidence, such as the psychologist’s report, that was not previously considered, she found.

The judge said the CFA’s decision to notify the Garda Vetting Bureau of a concern, despite the “unfounded” finding, represents a further discharge of its functions under section 3.

The CFA’s policy is “silent” on the question of further investigation into an allegation following an “unfounded” ruling by the appeal panel. The judge was satisfied the agency can reinvestigate or further investigate a claim where it is necessary to protect children.

The agency should consider the man’s position as someone who has been the subject of a criminal trial and a protracted CFA investigation, she said. If it decides matters arise that make it “reasonable and proportionate” to further investigate this claim, it is lawful for it to do so.

Ms Justice Phelan said the investigation was fully compliant with the CFA’s policy. She refused the orders sought.